DOMBROWSKI v. PHILADELPHIA (08/06/68)

decided: August 6, 1968.

DOMBROWSKIv.PHILADELPHIA, APPELLANT

Appeal from order of Court of Common Pleas of Philadelphia County, March T., 1967, No. 2348, in case of Edwin L. Dombrowski v. City of Philadelphia, James H. J. Tate, Mayor, Paul D'Ortona, president of council, et al.

COUNSEL

Levy Anderson, First Deputy City Solicitor, with him Allan H. Gordon, Assistant City Solicitor, and Edward G. Bauer, Jr., City Solicitor, for appellants.

Henry W. Sawyer, III, with him R. Phillip Steinberg, for appellee.

Herbert A. Fogel, for amicus curiae.

Musmanno, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Eagen concurs in the result. Mr. Chief Justice Bell and Mr. Justice Jones took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Justice Cohen.

Author: Roberts

[ 431 Pa. Page 201]

Edwin L. Dombrowski, appellee, was employed by the City of Philadelphia as chief of general accounting from July, 1952 to June, 1966. Under Philadelphia's municipal retirement plan he is entitled to retirement benefits commencing in August, 1972. Alleging that § 2-308 of Philadelphia's Home Rule Charter requires an "actuarially sound pension and retirement system" and that the city's contributions in 1966 and 1967 were insufficient to maintain its retirement system on an actuarially sound footing, Dombrowski instituted an action of mandamus to compel appellants to make the necessary appropriations.

Given the complexity of the issues raised, Judge Spaeth of the Court of Common Pleas of Philadelphia County was specially appointed to hear and determine this litigation. Preliminary objections were denied, expert testimony taken and an extensive opinion prepared. The court below found that the appropriations made by the city were in fact insufficient to maintain the retirement system in an actuarially sound condition.*fn1 It ordered Philadelphia to allocate to the

[ 431 Pa. Page 202]

retirement system $20,000,000 in 1967, $40,000,000 in 1968*fn2 and for each year after 1968 until all of appellee's retirement benefits have been paid an amount determined by the city's actuaries sufficient to meet the system's normal cost plus interest on its unfunded accrued liability. This appeal calls into question only two aspects of the litigation: (1) appellee's standing to institute a mandamus action and (2) the scope of the order entered. The city does not on appeal question the conclusion of the court below that its annual contributions for 1967 and 1968 were insufficient to meet the standard of actuarial soundness required by the Home Rule Charter.*fn3

[ 431 Pa. Page 203]

I. Standing To Sue

A. The Sufficiency of Dombrowski's Interest

The dispositive question on this issue, as the parties have correctly recognized, is whether Dombrowski's interest is sufficient to allow him to maintain a mandamus action in his own name. The city contends that in an action to enforce § 2-308 of the Charter only the Attorney General or the District Attorney of Philadelphia County has the requisite standing. Appellants insist that their position is supported by the language of the Mandamus Act of 1893, Act of June 8, 1893, P. L. 345, § 3, 12 P.S. § 1913; appellee disputes this point and further argues that, if the cases decided pursuant to the Mandamus Act do support appellants, these cases were impliedly overruled by the promulgation of Pennsylvania Rule of Civil Procedure 1092, one of the rules governing mandamus actions.*fn4

[ 431 Pa. Page 204]

We are convinced that Rule 1092 has not broadened the standing for private mandamus actions for the simple reason that, with the possible exception of Davidson v. Beaver Falls Council, 348 Pa. 207, 34 A.2d 505 (1943), our cases have charted a consistent course in this area both before and after the effective date of Rule 1092. Nevertheless, this consistent course, we believe, demonstrates that Dombrowski's interest is sufficient to support a mandamus action brought in his private capacity.

Section 3 of the Mandamus Act provides: "The writ of mandamus may issue upon the application of any person beneficially interested." (Emphasis supplied.) Section 4, Act of June 8, 1893, P. L. 345, § 4, 12 P.S. § 1914, then states: "When the writ is sought to procure the enforcement of a public duty, the proceedings shall be prosecuted in the name of the commonwealth on the relation of the attorney general: . . ."*fn5 Two of our early cases, both decided prior to the adoption of the Mandamus Act of 1893, tell us that a private litigant may maintain a mandamus action to enforce a public duty when that plaintiff has an individual and beneficial interest in the litigation independent of that which is held by the public at large. Commonwealth ex rel. Snyder v. Mitchell, 82 Pa. 343 (1876); Heffner v. Commonwealth ex rel. Kline, 28 Pa. 108 (1857).

Subsequent cases did not work a change in this rule. Loraine v. Pittsburgh, Johnstown, Ebensburg & Eastern Railroad Co., 205 Pa. 132, 54 Atl. 580 (1903) may be fairly termed the leading post-Mandamus Act, pre-rules of civil procedure case on the standing of a private plaintiff. Loraine, a coal mine operator, sued defendant-common carrier in mandamus, alleging that

[ 431 Pa. Page 205]

the railroad had failed to perform its statutory duty as a common carrier by its refusal to transport plaintiff's coal unless that coal was to be sold to a coal company specified by the carrier. We held that this private plaintiff had standing and that the writ should issue, stating the proper rule for standing as follows (id. at 136, 54 Atl. at 581-82): "True, the act directs that when the writ is sought to procure the performance of a public duty only the proceeding shall be in the name of the commonwealth at the relation of the attorney general or the district attorney of the proper county, but it also provides in the 3d section, that it shall issue on the application of any person beneficially interested. While we have no doubt, that these words would give standing to any one interested to make application to the attorney general for his intervention, they just as clearly save to each person the right existing before the act, to sue out the writ when he seeks to protect an interest, special to himself as distinct from the general public." (Emphasis supplied.) See also Stegmaier v. Jones, 203 Pa. 47, 52 Atl. 56 (1902). The Loraine Court declared that it was irrelevant that plaintiff was not the only shipper so restricted by the railroad for his injury, along with others so situated, was special.*fn6

[ 431 Pa. Page 206]

The Loraine analysis was employed in Commonwealth ex rel. Attorney General v. Mathues, 210 Pa. 372, 59 Atl. 961 (1904), a case presenting the converse issue, i.e., did the Attorney General have standing to maintain the mandamus action. Plaintiff-Attorney General alleged that the state treasurer had refused to disburse funds appropriated for an increase in judicial salaries. The lower court opinion, reprinted in our reports, stressed that this withholding of judicial salaries was a matter of sufficient public concern to allow the Attorney General to request the writ. However, despite the reading given Mathues in the city's brief, the opinion in no way intimates that an individual judge, if he so wished, would have lacked standing to sue and, in fact, the opinion states that his special interest, shared with other judges, would support a private mandamus action.*fn7

The leading post-rules case again reiterates that the relevant inquiry is whether the private plaintiff possesses an interest which is not shared by the public at large. In Dorris v. Lloyd (No. 1), 375 Pa. 474, 100 A.2d 924 (1953), cert. denied, 347 U.S. 936, 74 S. Ct. 632 (1954) plaintiff, as county chairman of the Democratic Party, brought mandamus against the Board of Elections of Luzerne County, alleging that the Board

[ 431 Pa. Page 207]

had failed, as required by statute, to control the conduct of primary elections and to investigate election frauds. We stated (id. at 477, 100 A.2d at 926): "Even before the passage of the [mandamus] act it had been uniformly held that when public rights are to be subserved only public officers may, ordinarily, apply for the writ, and that a private individual cannot do so unless he can show some particular right or privilege of his own independent of that held in common with the public at large: [citations omitted]. Since the passage of the act there have been numerous authorities holding to the same effect, namely that, where the duty of an officer under a statute is a public one, it can be enforced only at the suit of the attorney general or the district attorney of the proper county or by a private citizen who has a specific and independent legal right or interest in himself different from that of the public at large or who has suffered an injury special and peculiar to himself: [citations omitted.]"*fn8 (Emphasis supplied.) Against these cases, spanning one hundred years and announcing the rule that our inquiry is whether the private plaintiff is asserting an interest "different from that of the public at large," appellants pit one authority, Davidson v. Beaver Falls Council, 348 Pa. 207, 34 A.2d 505 (1943). They insist that Davidson stands for the proposition that we must examine not whether the private plaintiff has an interest distinct from the public at large (here, the citizens of Philadelphia) but whether his interest is distinct from that which he shares with all other

[ 431 Pa. Page 208]

members of the municipal retirement system.*fn9 Davidson was a Beaver Falls policeman. He claimed that Beaver Falls should have established a retirement system for policemen in 1930 rather than 1941, the date it was established, and asked that Beaver Falls be compelled to contribute at maximum rates all it could, since 1930, have contributed. In what is, at best, an alternative holding,*fn10 we said (id. at 210, 34 A.2d at 506): "The establishment and administration of the Police Pension Fund is a public duty; Davidson's interest was not different from that of other policemen in or other residents of the city. He may or may not in the future become eligible to retirement pay. He is not now suffering any special private damage or injury differing in kind and not alone in degree from that suffered by the residents generally."

To the extent that Davidson states that the relevant group is not the public at large, it is a departure from both prior and subsequent cases and therefore is disapproved. Furthermore, it is clearly distinguishable even if all its language is given a broad reading. Davidson was entitled to retirement benefits only after

[ 431 Pa. Page 209]

a minimum of twenty years continuous service. See Act of June 23, 1931, P. L. 932, § 4302, as amended, 53 P.S. § 39302 (Supp. 1967). At the time of suit, he had been serving as a Beaver Falls policeman continuously from February 21, 1928, a period of less than twenty years. See Davidson v. City of Beaver Falls, 38 Pa. D. & C. 47, 49 (C.P. Beaver Cty. 1939). He was thus, at the time he brought his action, not entitled to retirement benefits and, as will be discussed more fully in text, infra, he had no vested interest in future retirement benefits which he might never, by virtue of either death or early retirement, receive. See Anderson, Vested Rights in Public Retirement Benefits in Pennsylvania, 34 Temple L.Q. 255, 259-60 (1961). The sequel to Davidson, Commonwealth ex rel. Coghlan, District Attorney v. Beaver Falls Council, 355 Pa. 164, 49 A.2d 365 (1946), a suit brought by the Commonwealth to compel the same payments demanded in Davidson, makes clear that Davidson's action was dismissed not because the relevant group was other than the public at large but for the simple reason that Davidson had not yet obtained a vested interest in retirement benefits.

Having concluded that the correct test for standing is whether Dombrowski possesses an interest in the proper administration of Philadelphia's retirement system distinct from that which he shares with the general public, we must determine if appellee does have such an interest. The city insists that, since appellee will not be entitled to ...

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